Elections across the pond: comparing campaign finance regimes in the United States and United Kingdom.

• Author: Hunker, Kathleen

1. CAMPAIGN FINANCE IN THE UNITED STATES A. The Permitted Framework B. Congress's Attempt to Foster Political Parity 1. Congress's First Attempt 2. Congress's Second Attempt C. The Enumerated Right to Free Speech D. The Court Responds II. CAMPAIGN FINANCE IN THE UNITED KINGDOM A. An Allergy to "Sleaze" B. The Residual Right to Free Speech C. Parliamentary Sovereignty D. Challenges to Parliamentary Sovereignty 1. Implications of the European Convention on Human Rights 2. Implications of the Human Rights Act CONCLUSION Campaign finance reform sits at the junction of two central tenets of modern liberal democracy: political liberty and political equality. On the one hand, political liberty proves indispensable to the discovery (1) and dissemination (2) of political truths--a requisite for genuine consent and participation by the citizenry. (3) On the other hand, political equality remains the standard by which the integrity of a democratic system is measured. (4) At first glance, these tenets do not necessarily collide in opposition: Both principles speak to individual autonomy, and both convey respect for human dignity. In a free-market economy, however, the asymmetrical distribution of wealth can result in unequal opportunities to influence the political process if liberty remains unrestrained. (5) This is particularly true with respect to political liberties that require an investment of capital before they can be exercised with any great effect. (6)

   The right to political speech is a prime example. Although the ability to voice one's ideas is not dependent on wealth, the ability to reach a wide audience is. What is the point of designing a political cartoon unless you can purchase the paper on which to print it? Speech without resources is sterile. It is deprived of the very thing that gives speech its inherent value as an instrument of individual self-development and democratic participation. (7) Of course, this coupling of speech and capital alludes to the very snarl mentioned above. When wealth is unevenly distributed, as it inevitably is, some individuals will be in a better position than others to exercise their right to effective political speech. These individuals will be in a better position to set the contours of public debate and secure their success at the polls. (8) For any democracy that identifies political equality as something beyond a formal definition of one-man-one-vote, this lopsided arrangement has severe implications since access to political liberty appears to favor affluence but the democracy's legitimacy depends on uniform access to methods of influencing the government. (9) Thus, democratic governments often find themselves traversing a tightrope in the areas of political speech, gauging each step in an attempt to find the optimal balance of free speech and fair play.

   A government's campaign finance laws represent the legislature's judgment regarding the proper balance between political liberty and political equality. Campaign finance laws represent an assessment of how a society's constitutional principles, organizational choices and political realities shape its democratic priorities. More importantly, these laws work to palliate the government's perceived loss of legitimacy by enabling the citizenry, through their elected representatives, to make a purposeful choice of which principle to indemnify. Any resulting political inequality or inhibitions on liberty are rationalized as a product of the society's democratic values, not a slight against them.

   Legislatures, however, do not possess unlimited discretion in their choices. In addition to political checks, many democracies structure their constitutions in ways that inhibit majoritarian control over political speech lest that control give way to hegemony by the majority and exclude minorities from access to political power. (10) These constitutional constraints vary, but oftentimes reflect the level of trust present within each country's political ethos. Whatever their form, these efforts to stave off government incursions on political speech can disrupt the legitimizing effect of campaign finance laws, as they prevent the legislature from voicing the public's ideal recipe on proper democratic values.

   Despite this concern, there is a current trend in modern democracies towards "constitutionalism," (11) whereby shifts in the importance of fundamental rights and the muscle commanded by the judiciary have imposed new limitations on national legislatures. (12) This trend has introduced a new deliberative process in each affected state that looks toward historical consensus instead of dynamic settlements as the basis for certain political rights. "Constitutionalism" essentially has changed what were once political decisions into legal ones, removing entire areas of regulation from the purview of national legislatures. (13) These effects are particularly evident in countries like the United Kingdom, New Zealand, Israel, and Canada, which currently have (or in Canada's case, recently had) customary constitutions that associated the protection of individual rights with legislative supremacy. (14) In these countries, public bodies have not yet adapted to new institutional roles nor have they settled on the proper distribution of rights protection amongst their political branches. As a consequence, the extent to which their legislatures may regulate political speech and other political rights is somewhat in question.

   With that in mind, this Article will compare campaign finance regulations in two distinct political systems to flesh out how "constitutionalism" affects public efforts at strengthening political integrity. Specifically, the Article looks at how the constitutional arrangements of the United States and the United Kingdom either facilitate or frustrate the ability of public bodies to enact the prevailing public opinions on whether the nation's underlying principles favor unrestrained political liberty or a level of political equality beyond the simple contours of one-man-one-vote. More important, the Article will compare the presumption each nation makes regarding its legislature's trustworthiness and how that presumption impacts the intensity of its constitution's legal principles. Ultimately, this Article seeks to show that the legislature's discretion in campaign finance reform does not necessarily reflect the existence of "constitutionalism," but rather the level of trust shared between the various constitutional actors.

   The Article is divided into two parts. Part I analyzes the history and current state of campaign finance reform in the United States. It then looks at Congress's intent when drafting seminal legislation in this area. Part I then addresses the relevant textual guarantees in the U.S. Constitution, followed by the U.S. Supreme Court's response to impositions on political speech and the Court's impact on the nation's final regulatory scheme. Part II summarizes the current state of campaign finance re- form in the United Kingdom and Parliament's motivations in passing the legislation. It then examines how the residual character of political rights and the traditional observance of legislative supremacy have permitted Parliament greater flexibility in drafting these types of reforms. Part II closes with a discussion of recent challenges to Parliamentary sovereignty and any possible effects on Parliament's ability to legislate. Special emphasis is given to the customary nature of the British constitution, the constitution's reliance on political safeguards, and the comity shared amongst constitutional actors.

   1. CAMPAIGN FINANCE IN THE UNITED STATES

   To understand how constitutionalism affects campaign finance reform, it is necessary to summarize the regime's current character. In the United States, that character can best be described as transitory and uncertain. Despite an unbroken succession of congressional legislation, (15) starting with the Tillman Act of 1907 (16) and continuing most recently with the Bipartisan Campaign Reform Act of 2002, (17) campaign finance reform has never enjoyed unreserved constitutional acceptance in the United States. Even when campaign finance legislation engendered the support of a legislative and judicial majority, there remained a steady undercurrent of unease among some members of the government at how far Congress's authority to regulate elections extended. This authority was challenged in the courts as early as 1916 (18) and was regularly brought into question during congressional debates. (19) More recently, the legislative schemes have encountered what increasingly seems to be hostile judicial attention. (20) Time and again, American courts have narrowed (21) and even struck down (22) pieces of legislation aimed at reducing the "corrosive and distorting effects" (23) of disproportionate wealth in U.S. elections. While the courts justify this interference as a legitimate and necessary use of their power of constitutional review, (24) critics are quick to respond that the judiciary's interference oftentimes results in unintended loopholes and wide gaps in coverage, which provide ample room for entrepreneurs to exploit. (25) This judicial interference, and its subsequent repercussions, have caused American campaign finance laws to advance in graduated cycles, or as Professor Persily describes, "a series of stages": legislative innovation, judicial modification, entrepreneurial circumvention, and, ultimately, additional rounds of legislation. (26) Thus, every inch of ground gained is the fruit of exertions not just on the House floor, but also on the bench, at the podium, and on the election circuit.

   This disjointed evolution of U.S. campaign reform is a direct result of judicial intervention. (27) The American Constitution shares powers amongst the different branches of government, permitting each constitutional actor a limited degree of influence over the...